I incorrectly predicted that there's no violation of human rights in ODEROVS v. LATVIA.

Judgment

FIFTH SECTION

CASE OF ODEROVS v. LATVIA

(Application no. 21979/08)

JUDGMENT

STRASBOURG

15 June 2017

This judgment is final but it may be subject to editorial revision. In the case of Oderovs v. Latvia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
André Potocki, President,Mārtiņš Mits,Lәtif Hüseynov, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having deliberated in private on 23 May 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 21979/08) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr Vladimirs Oderovs (“the applicant”), on 26 March 2008. 2. The applicant was represented by Ms L. Defalque, a lawyer practising in Brussels. The Latvian Government (“the Government”) were represented by their Agents, Ms I. Reine and, subsequently, Ms K. Līce. 3. The applicant alleged, in particular, that the interception of his telephone conversations with O.S. had been in breach of Article 8 of the Convention. 4. On 16 December 2011 the complaint under Article 8 of the Convention was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1960 and lives in Riga. A. Criminal proceedings against the applicant
6. On 5 November 2004 criminal proceedings were instituted in connection with large-scale smuggling of oil products and on 27 September 2005 the applicant was declared a suspect. On the latter date he appointed O.S. as his defence counsel. 7. On 8 June 2006 charges were brought against the applicant and on 22 March 2007 he was issued with a full copy of his criminal case file. It consisted of more than 100 volumes and included – in volumes nos. 33 (64 pages) and 58 (194 pages) – transcripts of the applicant’s telephone conversations with several individuals and also with O.S. (see paragraph 10 below). 8. On 27 March 2007 the case material was sent for adjudication to the first‐instance court. On 9 June 2008 the first-instance court convicted the applicant of large-scale smuggling of oil products, aggravated forgery and money laundering in an organised group and sentenced him to imprisonment of five years and one month. The parties disagree as to whether or not the transcripts of the applicant’s telephone conversations with O.S. were used as evidence against him. 9. On 23 September 2013 the appellate court quashed the first-instance court’s ruling and acquitted the applicant on all counts. In a final decision of 23 April 2014 the Supreme Court refused to institute proceedings on points of law. B. Recording of the applicant’s telephone conversations
10. Over a period of time, the Constitution Protection Bureau (Satversmes aizsardzības birojs), which is one of the Latvian intelligence services, intercepted the applicant’s telephone conversations with several individuals, including O.S. Telephone conversations with the latter were recorded on 8 April, 22 and 27 May, 7 October 2005. Four pages of transcripts of those recordings were subsequently included in the evidence in the criminal case material against the applicant (see paragraph 7 above). 11. The parties disagree as to when the applicant learned about those recordings. They also disagree as to whether O.S. was the applicant’s lawyer at the time of those recordings. According to the applicant, O.S. was his lawyer with effect from 8 February 2005. According to the Government, O.S. was the applicant’s acquaintance; he had become his lawyer only with effect from 27 September 2005, when the applicant appointed him as his defence counsel. 12. According to a document (uzziņa) prepared by the Supreme Court on 27 June 2012 and addressed to the Government, on 26 November 2004 an operational measure – the interception of the applicant’s telephone conversations – had been authorised until 26 January 2005. The document was based on “the Supreme Court’s register of special proceedings (lietvedība) relating to classified State secrets for the year 2004, Volume 11, entry no 2‐4249s of 26 November 2004”. That document also contained further similar entries relating to subsequent authorisations on 25 January, 31 March, 1 June, 22 July, 20 September and 16 November 2005. C. Review of the applicant’s complaints at domestic level
13. On 27 June 2006 a prosecutor examined the applicant’s inquiry concerning the recording of his telephone conversations, referring to section 35(1) of the Law on Operational Activities (Operatīvās darbības likums). She informed him that a Supreme Court judge had authorised the measure in accordance with section 7(3) and 7(4) and section 17 of the Law on Operational Activities. She explained the legal regulation pertaining to the use of such recordings in criminal proceedings. She also referred to Article 8 of the Convention and the permissible limitations contained therein. 14. On 13 October 2006 the same prosecutor examined a further complaint from the applicant concerning the lawfulness of the recordings. She stated that the interception had been carried out by the Constitutional Protection Bureau from December 2004 to January 2006. It had been done in accordance with domestic law on suspicion of large-scale tax evasion. Transcripts of the telephone conversations that had been of relevance for the criminal proceedings had been sent to the relevant authority (procesa virzītājs) and would be assessed in the context of those criminal proceedings. 15. On 13 November 2006 the same prosecutor refused the applicant’s request to have sight of the decisions authorising the interception of his telephone conversations as they constituted classified information. 16. On 21 December 2007 the applicant lodged another complaint with the prosecutor’s office concerning the fact that his telephone conversations with his lawyer had been intercepted and that the recordings of those conversations had been played back at a court hearing. The applicant argued that the investigating prosecutor, I.K., had been aware that these were conversations between him and his lawyer and that he had therefore violated domestic law. The applicant asked that the lawfulness of the prosecutor’s actions be examined and that it be decided whether he was suitable for his position. The applicant also called for criminal proceedings to be instituted against I.K. 17. On 3 January 2008 a different prosecutor decided to refuse the institution of criminal proceedings against I.K. 18. On 15 January 2008 the applicant appealed against the refusal to institute criminal proceedings and also complained that the reply of 3 January 2008 had not provided an answer to his request for evaluation of the lawfulness of I.K.’s actions and his suitability for the position of prosecutor. He relied on the relevant provisions of domestic law and Article 8 of the Convention. 19. On 21 January 2008 a higher-ranking prosecutor dismissed the applicant’s complaint. She argued that the applicant had not authorised O.S. to represent him in those criminal proceedings until 27 September 2005 and that the intercepted conversations prior to that date had therefore taken place between the applicant and O.S. as a citizen, not as a practising lawyer. As to the conversation of 7 October 2005, she pointed out that it was not the telephone conversations of O.S. that had been intercepted but those of the applicant, which had been duly authorised by a Supreme Court judge. A reference was made to the fact that the applicant’s complaint concerning the playing back of his telephone conversations at a court hearing had been examined by the first-instance court. Lastly, in rejecting the applicant’s complaint under Article 8 of the Convention, she referred to that Article and the permissible limitations contained therein. That decision included a note that it was final. II. RELEVANT DOMESTIC LAW
20. The relevant provisions of the Law on Operational Activities (Operatīvās darbības likums) as in force at the material time have been summarised in the cases of Taraneks v. Latvia (no. 3082/06, §§ 42-47 and 49-50, 2 December 2014) and Šantare and Labazņikovs v. Latvia (no. 34148/07, §§ 29-32, 31 March 2016). 21. In addition, section 24(5) prohibits State agencies from gathering operative information when practising lawyers (zvērināts advokāts) are providing professional services, except when they themselves are under an operational investigation (operatīvās izstrādes objekts). This provision was amended with effect from 1 August 2016 and as of that date is contained in section 24 (7) of the same law. It now provides that any information gathered when practising lawyers are providing professional services must be destroyed immediately. The keeping of such information is allowed only with the approval of the Prosecutor General or prosecutors specially authorised by him if there are indications that a crime is being planned or has been committed or that public security is otherwise under threat. 22. Section 6 of the Law on the Bar Association (Advokatūras likums) provides that communication between a practising lawyer and his or her client in the provision of legal assistance may not be subject to control. Unlawful action in the interests of the client, however, is not to be considered as legal assistance. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
23. The applicant complained about the interception of his telephone conversations with O.S., which – in his view – were covered by lawyer‐client privilege. He relied on Article 8 of the Convention which reads:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Admissibility
1. The parties’ submissions
(a) The Government
24. The Government raised several preliminary objections. Firstly, the Government submitted that the applicant had not suffered any significant disadvantage and that his complaint should therefore be declared inadmissible pursuant to Article 35 § 3 (b) of the Convention. 25. Secondly, the Government argued that the complaint had been introduced out of time as there had been an excessive delay on the part of the applicant in so doing. He had learned about the interception of his telephone conversations on 27 June 2006, but had not lodged his application with the Court until 26 March 2008. In their submission, the 21 January 2008 decision was not a final decision in respect of the applicant’s complaint under this head. 26. Thirdly, the applicant had failed to exhaust the available domestic remedies, as he had never complained to the prosecutor’s office under section 5 of the Law on Operational Activities. In the Government’s view the applicant’s complaint of 21 December 2007 had not concerned the operational measures, but rather the institution of criminal proceedings against the investigating prosecutor and his professional conduct. (b) The applicant
27. The applicant disagreed, arguing firstly that he had suffered significant disadvantage even if he had not suffered any pecuniary loss. 28. Secondly, his complaint had been introduced in time, that is, within six months of the 21 January 2008 decision. That decision had also concerned the lawfulness of the recording of his telephone conversations with his lawyer. Moreover, a reference which had been made to Article 8 of the Convention in that decision showed that the prosecutor had examined the applicant’s complaint under this head. That decision was a final decision in this respect. 29. Thirdly, he did not agree that his 21 December 2007 complaint had only concerned the institution of criminal proceedings against the investigating prosecutor and his professional conduct. He emphasised that he had also complained about the lawfulness of the recording of his telephone conversations with his lawyer and that the prosecutor had examined his complaint in that regard. 2. The Court’s assessment
(a) “No significant disadvantage” criterion
30. The Court will now examine whether or not the applicant has suffered a significant disadvantage as required by Article 35 § 3 (b) of the Convention. 31. The Court is mindful of the fact that the present case concerns a matter of principle for the applicant, namely the confidentiality of his communications with O.S., which he considered to be covered by lawyer‐client privilege (see paragraphs 11 and 16 above). Indeed, the Court has emphasised that the confidentiality of lawyer-client communications must be respected (see Campbell v. the United Kingdom, 25 March 1992, §§ 46-52, Series A no. 233; Michaud v. France, no. 12323/11, § 117, ECHR 2012 and the case-law cited therein). 32. Under these circumstances the applicant cannot, in the Court’s view, be deemed not to have suffered a significant disadvantage. It is therefore not necessary to examine the two “safeguard clauses”. 33. Accordingly, the Court dismisses the Government’s preliminary objection. (b) Exhaustion of domestic remedies
34. The Court will now examine the Government’s plea of non‐exhaustion. The Court observes that the applicant raised the issue of the lawfulness of the interception of his telephone conversations with the prosecution authorities on several occasions and that all his complaints in that regard were examined (see paragraphs 13-19 above). While it is true that the applicant did not expressly rely on section 5 of the Law on Operational Activities in his complaint of 21 December 2007, the prosecutor examined the issue of lawfulness and expressly referred to Article 8 of the Convention in this regard in the final decision of 21 January 2008 (see paragraph 19 above). 35. The Court therefore accepts the applicant’s contention that his 21 December 2007 complaint related to the lawfulness of the interception of his telephone conversations with O.S. and concludes that he had exhausted the domestic remedies. The Court, accordingly, dismisses the Government’s preliminary objection in this regard. (c) Six-month rule
36. Taking into account the above conclusion concerning the exhaustion of domestic remedies, the Court considers that the final decision in respect of the applicant’s complaint was taken on 21 January 2008. He lodged his application with the Court on 26 March 2008, that is to say within the six‐month time-limit. The Government’s preliminary objection is to be rejected. (d) Conclusion
37. The Court notes that the present complaint is not manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
(a) The applicant
38. The applicant maintained that there had been an interference with his right to respect for his private life and his correspondence. He did not dispute the existence of a statutory basis for the interference, but referred to section 7(4) of the Law on Operational Activities, according to which a judge’s authorisation could be issued for a period of only three months. He was not aware of any extensions of that authorisation, and an interception which had continued for more than one year had therefore been in breach of domestic law. 39. Latvian law did not provide adequate and effective safeguards against abuse; the applicant was unable to obtain any effective review of the measures applied to him. In this connection he referred to the fact that the judge’s authorisation had constituted classified information. No irregularities in the use of the information obtained could be detected. All his conversations with O.S. should be viewed as privileged material whatever their context and content (he referred to Foxley v. the United Kingdom, no. 33274/96, § 43, 20 June 2000 and Campbell, cited above, §§ 46-48). 40. The applicant also argued that the interception of his telephone conversations had not been necessary in a democratic society. In the sensitive area of confidential relations between a lawyer and his client, privileged correspondence must be afforded increased protection (he referred to Aalmoes and Others v. the Netherlands (dec.), no. 16269/02, 25 November 2004). He pointed out that O.S. had been his lawyer since 8 February 2005 and that the lawyer-client relationship was privileged irrespective of the type of legal assistance provided. Moreover, the 7 October 2005 conversation had clearly concerned the applicant’s criminal case (the terms “preventive measure”, “questioning” and “prosecutor” were all mentioned). In any event, in order to distinguish casual conversations from conversations attracting legal privilege the authorities had to listen to the telephone conversations and to read the transcripts thereof, thereby becoming aware of their contents and thus breaching legal privilege. (b) The Government
41. The Government did not deny that there had been an interference with the applicant’s right to respect for his private life and correspondence. They believed, however, that the interference at issue had been prescribed by law, had pursued a legitimate aim and had been necessary in a democratic society. The contested interception of the applicant’s telephone conversations had been carried out in accordance with the Law on Operational Activities and had pursued a legitimate aim of preventing crime. They admitted that the judge’s authorisation was classified information, however they submitted a letter from the Supreme Court attesting to the fact that a judge had authorised interception of the applicant’s telephone conversations on multiple occasions (see paragraph 12 above). 42. As to proportionality, they argued that ordinary measures under criminal procedure had proved to be inefficient in gathering credible information about large-scale smuggling allegedly masterminded by a high‐ranking State official (those questioned had denied any involvement on the part of State officials). As to adequate and effective safeguards, the Government admitted that the applicant was not initially aware of the fact that his telephone conversations were being intercepted. However, on 27 June 2006 he had been informed of this fact and of the fact that a judge had authorised the interception. Moreover, on 13 October 2006 the applicant had been informed of the authority who had intercepted his telephone conversations and of the overall duration of that measure. 43. The Government disagreed that all conversations with O.S. were to be considered as privileged material. He had been the applicant’s defence counsel only with effect from 27 September 2005, and any prior conversations had therefore been made in his private capacity. As to the telephone conversation of 7 October 2005, the Government submitted that not every conversation between a lawyer and his client was necessarily privileged. The Government emphasised that the applicant himself and his lawyer had publicly acknowledged those conversations had been casual and insignificant; no legal issues or defence position had been discussed between them. 2. The Court’s assessment
44. The Court refers to a recent summary of the relevant principles in the case of Šantare and Labazņikovs (cited above, §§ 53-55). 45. The Court notes that in the present case it is common ground between the parties that the interception of the applicant’s telephone conversations with O.S. constituted an interference with his right to respect for his private life and correspondence and that this interference was attributable to the State. The Court sees no reason to hold otherwise. 46. It is therefore necessary to examine whether this interference was justified under the terms of paragraph 2 of Article 8, namely whether it was “in accordance with the law” and “necessary in a democratic society” for one of the purposes enumerated in that paragraph. 47. As to the existence of a legal basis, the Court refers to the conclusions drawn by prosecutors at several levels that the interception of the applicant’s telephone conversations had been carried out in accordance with the Law on Operational Activities (see paragraphs 13, 14 and 19 above). As the parties did not contest it, the Court accepts that the interception of the applicant’s telephone conversations had had a legal basis in Latvian law and had pursued the legitimate aim of preventing crime. 48. As to the question of foreseeability, section 4 of the Law on Operational Activities lists the principles to be applied when operational measures are ordered and carried out. Section 7(4) of that law requires judicial authorisation for the interception of telephone conversations and sets out that such interception may not exceed three months initially. The authorisation is drawn up in writing and the judge deciding whether to grant it has the right to access the documents on which the requested operative measure is based, subject to obtaining special leave from an operational investigation entity insofar as access to secret information is concerned. The court adjudicating on the criminal case must be provided with all the information obtained as a result of the operational investigation activities (see Šantare and Labazņikovs, cited above, § 57). 49. As to the applicant’s allegation of a breach of the domestic time‐limit of three months, the Court notes that the Government have furnished a document prepared by the Supreme Court on 27 June 2012 (see paragraph 12 above) according to which the contested interception had been authorised on multiple occasions, each time for less than three months. However, as in Šantare and Labazņikovs, the Court cannot speculate as to whether the information furnished by the Government in the present case attested to the existence of a written authorisation in the form of a decision (see Šantare and Labazņikovs, cited above, § 60). Like the applicants in that case, the present applicant also wished to verify whether there had been a judicial decision authorising the interception (see paragraph 15 above). While the prosecutors at all levels informed him that such a decision existed, they did not provide any details allowing him to verify that such a decision had indeed been made, such as a reference number of that decision or the name of the judge who had adopted that decision (see Šantare and Labazņikovs, cited above, §§ 60-61). The Court cannot but note that, although one prosecutor stated that the interception of the applicant’s telephone conversations had been carried out on suspicion of large-scale tax evasion, the criminal proceedings against the applicant concerned large-scale smuggling of oil products, aggravated forgery and money laundering in an organised group (contrast paragraphs 6 and 8 with 14 above). While acquitting the present applicant, the domestic courts do not appear to have examined the lawfulness of the contested measures in the criminal proceedings against him at all. 50. In these circumstances the Court concludes that the applicant was not able to verify whether the interference with his rights under Article 8 of the Convention had been carried out on the basis of a prior judicial authorisation and was therefore lawful. The applicant could therefore not obtain an effective review of the lawfulness of the contested measures and did not have additional safeguards against arbitrariness in this respect. 51. Moreover, as to whether the impugned measure had been “necessary in a democratic society”, the Court notes that it is undisputed that at least one of the contested conversations – that on 7 October 2005 – was with the applicant’s defence counsel. The Court has recognised that, while Article 8 protects the confidentiality of all communication between individuals, it will afford “strengthened protection” to exchanges between lawyers and their clients, as lawyers would be unable to defend their clients if they were unable to guarantee that their exchanges would remain confidential (see Michaud, cited above, § 118). While the Government contended that not every conversation between a lawyer and his client was privileged, the Court sees no reason to distinguish between the different categories of communication with lawyers which, whatever their purpose, concern matters of a private and confidential character (see Campbell, cited above, § 48, which concerned correspondence). The Government in the present case did not submit that there was any reason to suspect that this channel of communication was being abused or that the applicant’s defence counsel was not complying with the rules of his profession. In sum, the mere possibility of abuse is outweighed by the need to respect the confidentiality attached to the lawyer-client relationship (ibid., § 52). 52. The above considerations are sufficient for the Court to conclude, without exploring the other aspects of the case, that the interference in the present case was neither “in accordance with the law” nor “necessary in a democratic society”. Consequently, there has been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
53. The applicant alleged that the interception of his telephone conversations with O.S. and their use in the criminal proceedings against him violated Article 6 § 1 in conjunction with Article 6 § 3 (b) and (c) of the Convention. 54. The Court considers that a person may not claim under Article 6 of the Convention to be the victim of a violation of his right to a fair trial which, according to him, was committed in the course of proceedings in which he was acquitted or which were discontinued (see McFarlane v. Ireland [GC], no. 31333/06, § 78, 10 September 2010, and Oleksy v. Poland (dec.), no. 1379/06, 16 June 2009 and the case-law cited therein). The Court notes that the applicant in the present case was fully acquitted and the Court considers that he can no longer claim to be the victim of a violation of his right to a fair trial. 55. Accordingly, this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
56. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
57. The applicant claimed 25,000 euros (EUR) in respect of non‐pecuniary damage. 58. The Government considered this amount unjustified, excessive and exorbitant. Referring to such cases as Foxley (cited above, § 54), Taylor‐Sabori v. the United Kingdom (no. 47114/99, § 28, 22 October 2002) and Hewitson v. the United Kingdom (no. 50015/99, § 25, 27 May 2003) they argued that the finding of a violation in itself would constitute adequate and sufficient compensation. 59. Deciding on an equitable basis, the Court awards the applicant EUR 1,500 in respect of non-pecuniary damage (see Šantare and Labazņikovs, cited above, § 78). B. Costs and expenses
60. The applicant also claimed EUR 12,157.06 for costs and expenses incurred before the Court. This claim was supported by time-sheets. 61. The Government disagreed with the claim. 62. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads. C. Default interest
63. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint concerning Article 8 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds
(a) that the respondent State is to pay the applicant, within three months,
(i) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage,
(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 15 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Anne-Marie DouginAndré Potocki Acting Deputy RegistrarPresident